The High Court has clarified two important evidential issues in drug-driving prosecutions: when an absent healthcare professional’s statement may be admitted, and when a police officer can give evidence that the professional advised that a driver’s condition might be drug-related. The ruling restores a prosecution that had ended in an acquittal after two pre-trial evidential decisions.
What did the High Court decide?
In Director of Public Prosecutions v Christopher Berntsen [2026] EWHC 2768 (Admin), handed down on 29 October 2026, Lord Justice Stuart-Smith and Mr Justice Johnson allowed the Director of Public Prosecutions’ appeal by way of case stated.
The Court considered two questions arising from rulings made at Basingstoke Magistrates’ Court. First, whether the prosecution’s limited efforts to secure the attendance of forensic custody nurse Joyce Jambaya meant that her statement could not be admitted under section 116(2)(c) of the Criminal Justice Act 2003. Secondly, whether police constable John’s evidence that Ms Jambaya had told him the respondent’s condition might be due to a drug was inadmissible hearsay.
The High Court answered both questions in the negative. It held that the magistrates’ court judge had erred in excluding the evidence on those grounds. The acquittal was set aside and the case was sent back to the Magistrates’ Court for trial. The Court made clear that it was expressing no view on the ultimate merits of the prosecution case.
What led to the appeal?
The case arose from a police stop on 11 June 2023. Mr Berntsen was subsequently charged with driving a motor vehicle on a road while the proportion of cannabis in his blood exceeded the specified limit. The judgment records a blood concentration of 3.9 micrograms per litre.
The prosecution case was that Ms Jambaya, the forensic custody nurse on duty at Southampton Police Station, examined Mr Berntsen and advised PC John that his condition might be due to a drug. This advice was relevant to the statutory requirement in section 7(3)(c) of the Road Traffic Act 1988, which governs when a constable may require a blood or urine specimen at a police station in an investigation involving a specified drug-driving offence.
Ms Jambaya had initially indicated that she could attend the trial, which was listed for 1 December 2025. On 21 November 2025, the prosecution was told that there had been an unexpected death in her family and that she needed to travel to Zimbabwe for the funeral on 24 November. She was not due back in the United Kingdom until 7 December.
The prosecution served a hearsay notice under section 116 of the 2003 Act. The defence objected, seeking further information and maintaining that it would be prejudiced if it could not cross-examine the nurse. The prosecution accepted that it had not made further enquiries about whether she could delay her departure, return earlier or give evidence remotely.
The magistrates’ court excluded Ms Jambaya’s statement and then also excluded PC John’s evidence about the advice as hearsay. The prosecution offered no evidence, and Mr Berntsen was acquitted. The DPP appealed both rulings.
Why was the nurse’s absence accepted?
Section 116(2)(c) of the Criminal Justice Act 2003 permits a statement to be admitted where its maker is outside the United Kingdom and it is not reasonably practicable to secure their attendance. The High Court stressed that the test is one of reasonable practicability, not absolute impossibility.
In applying that test, the Court referred to the factors identified in R v Castillo and endorsed in R v Yu: the importance of the evidence and the prejudice caused by the witness’s absence; the expense and inconvenience of securing attendance; and the reasons given for the witness’s inability to attend.
The Court accepted that the prosecution had been notified of the problem only shortly before Ms Jambaya was due to leave the country. The short period between 21 and 24 November meant that compelling her to remain in the United Kingdom was impractical. A remote hearing from Zimbabwe would also have required consultation with the relevant authorities and compliance with the applicable guidance on taking evidence from abroad. There was insufficient time to arrange that process before the trial.
The Court also considered the significance of the nurse’s evidence and the potential prejudice to the defence. It found that the respondent had not clearly explained why the nurse’s evidence was challenged or how its admission as hearsay would cause significant prejudice. On the issue of whether the blood sample had been disturbed or shaken, the Court noted that Mr Berntsen could give evidence himself.
Finally, the Court regarded the unexpected family bereavement and funeral in Zimbabwe as a compelling reason for Ms Jambaya’s absence. Taking the relevant factors together, it concluded that the judge had focused too narrowly on the lack of further enquiries and had failed to assess the overall circumstances. The prosecution had established that securing her attendance was not reasonably practicable.
“The test is one of reasonable practicability, not impossibility.”
High Court, summarising the applicable approach to section 116(2)(c)
When does the advice amount to hearsay?
The second issue concerned the distinction between proving that a statement was made and proving that the contents of that statement were true. The High Court held that the purpose for which evidence is adduced is central to deciding whether the hearsay rules apply.
Under section 7(3)(c) of the Road Traffic Act 1988, the relevant condition is that the constable has been advised by a medical practitioner or registered healthcare professional that the person’s condition might be due to some drug. The statutory requirement is concerned with the fact that the advice was given. It does not require the prosecution to prove that the healthcare professional’s opinion was correct or reasonable.
PC John’s proposed evidence was that Ms Jambaya had given him the relevant advice. It was not being relied upon to establish that Mr Berntsen’s condition was in fact caused by drugs. The Court therefore held that the evidence was tendered to prove that the communication took place, not to prove the truth of the medical opinion contained in it.
The Court rejected the argument that the nurse’s intention that the officer should act on her advice automatically made the evidence hearsay. It explained that there is a distinction between intending a recipient to act upon a message and intending the recipient to act on the basis that a matter stated in the message is true. The relevant question is the particular fact the evidence is being used to prove.
Accordingly, PC John’s direct testimony that he had received the advice did not amount to hearsay for the purpose for which the prosecution sought to rely on it. The magistrates’ court judge had identified the wrong fact as the subject of proof and was wrong in law to exclude the evidence on that basis.
What happens next?
The High Court allowed the appeal, set aside the acquittal and remitted the case to the Magistrates’ Court for trial. It also confirmed that the prosecution may call Ms Jambaya at the remitted trial if it chooses to do so.
- Police stop Mr Berntsen while driving; the alleged drug-driving offence arises.
- The prosecution is informed of Ms Jambaya’s family bereavement and planned travel to Zimbabwe.
- Trial date at Basingstoke Magistrates’ Court; the nurse’s statement and the officer’s evidence are excluded, and the respondent is acquitted after the prosecution offers no evidence.
- The High Court hears the DPP’s appeal.
- The Divisional Court allows the appeal and remits the case for trial.
The judgment does not determine whether Mr Berntsen is guilty. It resolves the evidential questions that led to the original prosecution being discontinued and leaves the substantive case to be considered at the retrial.
Frequently asked questions
What did the High Court decide in DPP v Berntsen?
The Court allowed the DPP’s appeal, held that the trial judge had wrongly excluded the nurse’s statement and the police officer’s evidence, set aside the acquittal and remitted the case for trial.
Can a healthcare professional’s statement be admitted if they are abroad?
It may be admitted under section 116(2)(c) of the Criminal Justice Act 2003 where the maker is outside the United Kingdom and it is not reasonably practicable to secure their attendance. The court must assess the circumstances rather than treat absence abroad as sufficient by itself.
Was the nurse’s statement treated as hearsay?
The High Court held that the prosecution could rely on the officer’s evidence to prove that the nurse had given the statutory advice. It was not being used to prove that the nurse’s medical opinion was true.
Does the prosecution have to prove that the nurse’s advice was reasonable?
For the particular statutory condition considered in this judgment, section 7(3)(c) of the Road Traffic Act 1988 requires proof that the constable received the relevant advice. The Court held that the statutory wording does not require an additional assessment of whether the advice was correct or reasonable.
Does the judgment mean that Mr Berntsen has been convicted?
No. The acquittal was set aside and the case was sent back to the Magistrates’ Court for trial. The High Court expressed no view on the merits or demerits of the prosecution case.